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L I E) RARY 

OF THE 

U N 1 VLRSITY 

Of ILLINOIS 

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INSTITUTE OF LABOR AND 
INDUSTRIAL RELATIONS 




B U 



I N 



Agricultural 
Workers Under 
National Labor 
Relations Laws 



UNIVERSITY OF ILLINOIS BULLETIN 




I. R. PUBLICATIONS SERIES A, VOL. 2, SPECIAL, MARCH 1948 



EDITORIAL NOTE 

This Bulletin covers a (question of considerable legislative, ad- 
ministrative, and judicial interest. Because of the use of an appro- 
priation rider for defining- agricultural employees, the cjuestion is 
destined for further consideratic:)n bv the Congress. The analysis 
by Dr. Fred W'itne}- presented here includes a historical surve}' of 
the Cjuestion and an analysis of how it relates to the Labor Manage- 
ment Relations Act, 1947. 

Because the c[uestion is a technical one and still rests on ad- 
ministrative and judicial decisions, references to the major sources 
are included. Readers interested in analyzing the technical aspects 
of this question will find the references comprehensive. For those 
with a more general interest. Dr. Witney's discussion provides a 
stimulating review. — Phillips Bradley 



Additional copies of this Bulletin are available. A charge of five cents 
per copy will be made, except that the first 10 copies will be furnished 
free of charge to individuals and groups in Illinois. Also available are 
copies of these other Institute Bulletins: 

Employment Act of 1946 Collective Barsainins: by Foremen 

Seniority and Job Security Municipal Mediation Plans 

Plant-Protection Employees Under Current Federal Labor Legislation 

Phillips Bradley Milton Berber 

Director Coordinator of Research 

Ralph Norton 
Editor 



UNIVERSITY OF ILLINOIS BULLETIN 

Published every five days by the University of Illinois. Entered as second-class matter at 
the post office at Urbana, Illinois, under the Act of August 24, 1"512. Office of Publication, 
358 Administration Building, Urbana, Illinois. Accejitance for mailing at the special rate 
of postage provided for in Section 1103, Act of October 3, 1*U7, authorized July 31, 1918. 






AGRICULTURAL WORKERS UNDER NATIONAL 
LABOR RELATIONS LAWS 

By Fred Witney, Ph.D. 

Department of Economics, Indiana l'niversit\' 

In June. 1935. when passage of the National Labor Relations 
Act was being- debated, some nieni!)ers of Congress contended that 
agricultural laborers, as well as industrial employees should receive 
le^gal protection of their right to organize and bargain collectively/ 
When the Act was finally passed, however, these workers were 
excluded from the coverage of the law." Under its provisions, an 
"employee" for purposes of the Act, did not include "any individual 
employed as an agricultural laborer." The Labor-Management Rela- 
tions Act, 1947 (Taft-Hartley Law), which supplants the National 
Labor Relations Act. also excltides these workers from its terms. ^ 

Congress apparently believed that the organization of farm 
workers was not of national concern. Since the numl)er of these 
workers is comparatively small, labor disputes resulting from or- 
ganization efforts of farm employees would not materially burden 
interstate commerce, according to this viewpoint. One representa- 
tive in Congress who reflected this position said: 

The agricultural worker is not a problem in some of the states. In 
some of the states they [farmers] have practically no employees in the gen- 
erally accepted sense of the term. In some states of the Union, especially in 
the Middle West, the farmers seldom employ more than one or two 
employees, and then for only seasonal employment.'* 

A Circuit Court of Appeals attempting to determine why agri- 
ctdtural laborers were excluded from the National Labor Relations 
Act also recognized this point. The Court declared, "There never 
would be a great number suffering under the difficulty of nego- 
tiating with the actual employer and there would be no need for 
collective bargaining and conditions leading to strikes would not 
obtain."' On the other hand, this Court held that it was not the 
intent of Congress to include within the agricultural classification 
workers employed in commercial enterprises which pack, can, or 
otherwise process farm products. 



4 I. L. I. R. BULLETIN 

WHO ARE AGRICULTURAL LABORERS? 

When Congress excluded agricultural employees from the Na- 
tional Lahor Relations Act in 1935 and the Labor Management 
Relations Act in 1947 it failed to define the meaning of the term, 
"agricultural employee." This is not the case in the Social Security 
Act*^ or in the Fair Labor Standards Act (Wage-Hour Law)' 
which also exclude agricultural employees from their coverage. 
Congress established legislative standards indicating the scope of the 
agricultural classification for purposes of these acts. 

Thus Section 209 of the Social Security Act contains a detailed 
definition of agricultural labor. Some of the main points of the 
definition follow: 

The term "agricultural labor" includes all service performed 

(1) on a farm, in the employ of any person, in connection with 
cultivating- the soil, or in connection with raising or harvesting 
any agricultural or horticultural commodity including the rais- 
ing, shearing, feeding, caring for, training, and management 
of livestock, bees, poultry, and fur-bearing animals and wild 
life. 

(2) 

(3) 

(4) in handling, planting, drying, packing, packaging, processing, 
freezing, grading, storing, or delivering to storage or to market 
or to a carrier for transportation to market, any agricultural 
or horticultural commodity. . . . 

The provisions of this paragraph shall not be deemed to 
be applicable with respect to service performed in connection 
with commercial canning or commercial freezing. 

Section 3(f) of the Fair Labor Standards Act defines agricul- 
ture as follows: 

'Agriculture" includes farming in all its branches and among other 
things includes the cultivation and tillage of the soil, dairying, the produc- 
tion, cultivation, growing, and harvesting of any agricultural or horticul- 
tural commodities . . . the raising of livestock, bees, fur-bearing animals or 
poultry, and any practices (including any forestry or lumbering operations) 
performed by a farmer or on a farm as an incident to or in conjunction 
with such farming operations, including preparation for market, delivery to 
storage or to market or to carriers for transportation to market. 

Congress did not define "agricultural employee" in the National 
Labor Relations Act and the Labor Manasfement Relations Act. 



AGRICULTURAL WORKERS O 

The task of interpretiiii^ the nature and extent of the a^ricidtural 
exclusion is left to the National Labor Relations I>oard and the 
courts. The power of the X.L.R.lx to construe the meaning of agri- 
cultm-al employment was not restricted until Jul)', 1^)46. approxi- 
mately 11 ^•ears after the i)assage of the National Labor Relations 
Act. At that time Congress passed legislation which made the defini- 
tion of agricultural workers as contained in the b^air Labor Stand- 
ards Act applicable to the National Labor Relations Act.*^ 

The main purpose of this bulletin is to examine the meaning 
and scope of the agricultural exemption for purposes of the Labor 
Management Relations Act. What employees are embraced within 
the exclusion ? Are employees of a farm cooperative agricultural 
workers? May workers who aid in the production of agricultural 
and horticultural products in a greenhouse expect protection from 
the N.L.R.B.? What tests does the N.L.R.B. employ to determine 
whether a particular worker performs agricultural duties? 

The N.L.R.B. in its 12 vears of operations has established many 
precedents in attempting to define the agricultural exemi)tion. A 
careful examination of these precedents seems worth while since 
rulings handed down by the N.L.R.B. under the National Labor 
Relations Act apply to the Labor Management Relations Act as 
long as they do not conflict with the new labor law.* Attention must 
also be directed to court decisions and to efforts of Congress to 
define the meaning of agricultural employment. 

It is important to examine carefully the agricultiu'al exclusion 
under the Labor Management Relations Act because: (1) workers 
])erforming agricultural duties may not be included in a bargaining 
unit certified as appropriate for purposes of collective bargaining; 
(2) employers have no legal obligation to bargain collectively with 
labor unions composed of agricultural laborers; (3) a farm worker 
may be discharged for union activities, and his reinstatement will 
not be ordered by the N.L.R.B. (4) labor organizations composed 
of farm workers are not affected by the restrictions which the new 
law placed on labor organizations. 



* Policies established by the N.L.R.B. under the National Labor Relations 
Act remain in force unless they are inconsistent with the Labor Manatj;cment Rela- 
tions Act. It has already been indicated that both laws treat agricultural laborers 
in essentially the same fashion. 



6 I. L. I. R. BULLETIN 

CONGRESS DEFINES AGRICULTURAL 
EMPLOYMENT 

Some members of Congress have from time to time sponsored 
legislation designed to clarify the meaning of the term ''agricultural 
employment" under the National Labor Relations Act. In 1939 one 
proposal was introduced to define the phrase to include workers who 
pack and can as well as those who produce farm commodities.^ 
Under this proposal, workers in commercial packing and canning 
establishments could expect no legal protection of their right to 
self-organize and bargain collectively. An attempt to exclude agri- 
cultural-product processing workers from the National Labor Rela- 
tions Act was made by the House of Representatives on February 
7, 1946 when it passed its version of the so-called Case Bill.^° 
Congress gave further attention to the definition of agricultural 
workers when the Labor Management Relations Act was being con- 
sidered. Again the House attempted to deny workers of packing 
houses, canneries, and similar food processing establishments legal 
protection of their right to organize." These efforts failed, however, 
and canning and packing house workers remain subject to the 
jurisdiction of the N.L.R.B. 

Limitation on N.L.R.B. Appropriation 

In 1946 employees of packing houses and farm-product process- 
ing enterprises were also threatened with the loss of legal protec- 
tion of their right to organize and bargain collectively. At that time, 
the House of Representatives defined agricultural labor for purposes 
of the National Labor Relations Act in the same manner as the 
term is defined in the Social Securitv Act.^^ 

Under the Social Security Act definition, agricidtural labor in- 
cludes services performed (1) by an employee in connection with 
the processing of articles from materials which were produced on 
a farm, also (2) the packing ... of these articles. When this 
definition was being debated in Congress, the N.L.R.B. cjuickly 
pointed out that it "would affect packing-shed and processing em- 
ployees."^^ On the other hand, the term agricultural emplovment 
contained in the Social Security Act does not apply to workers 
employed in commercial canning plants. 



AGRICULTURAL WORKERS ' 

The House took action by passinj^ a rider to the N.L.R.B. Ap- 
propriation Act, 1947. The rider prohibited the Board from spend- 
ing anv of its funds in cases involving workers who are defined as 
agricnhural employees in the Social Security Act. The appropriation 
for the N.L.R.B. was contained in a bill appropriating funds for 
several other federal agencies and the House expected the Senate to 
agree to the N.L.R.B. rider in order not to delay the allocation of 
funds for the other agencies. 

Position of the Senate 

The Senate, however, refused to approve the House-sponsored 
rider. Some members of the Senate pointed out that it would de- 
prive "many hundreds of thousands of packing-shed workers" of 
legal protection of their right to collective bargaining." Since 
workers engaged in packing citrus fruit, lettuce, or other agri- 
cultural products could not use procedures of the National Labor 
Relations Act, they might turn to the strike when their right to 
bargain collectively was denied, it was argued in the Senate.^ ' 

Senator Morse, of Oregon, who had been a public member of 

the National War Labor Board, was particularly concerned with 

possible effects of the rider. He pointed out that the National War 

Labor Board had been forbidden to use its funds to settle disputes 

involving "agricultural laborers" as that term is defined in the 

Social Security Act. As a result of the limitation (known as the Lea 

rider to the 1946 Appropriation Act of the War Labor Board) Mr. 

Morse declared: 

A gvQRt many strikes occurred among the employees [of packing estab- 
lishments] which never would have occurred had the National War Labor 
Board been free to use its funds to send members of its staff into the 
disputes which arose, to the end of settling them under the peaceful pro- 
cedures of the War Labor Board. Being denied the peaceful procedures 
of the War Labor Board for use in the settlement of their disputes, the 
workers had no other course but to strike.'" 

Mr. Robert La Follette, then Senator from Wisconsin, also was 

fearful that the House-sponsored rider might result in serious 

organizing strikes. He said: 

When I was chairman of the so-called Civil Liberties Cc^mmittee wc 
conducted investigations in California concerning [organizing] strikes in 
some of the packing sheds. The record will shcnv that they were among the 



8 I. L. I. R. BULLETIN 

most bitter and violent cases of that character on which the committee held 
hearings. I believe that, from the standpoint of production of important 
foodstuffs and their packing and distribution, if this Senate takes this action 
[approval of the House-sponsored rider] it will be moving in the direction 
of returning to the chaotic and bitter controversies which took place before 
the employees had the protection of the National Labor Relations Act. . . ." 

The Senate defeated a motion to approve the House-sponsored 
rider and the matter was referred to a Senate-House conference 
committee on July 12, 1946. This committee was unable to reach 
an agreemeiit during the following week and the Senate was again 
approached on the matter. Once more the Senate refused to agree 
to the Social Security Act definition, and the dispute was again 
referred to the conference committee. 

Fair Labor Standards Act Definition Applied 

On July 20, 1946, the conference committee finally worked out 
a compromise which was acceptable to both houses of Congress. 
Instead of accepting the Social Security Act definition of agricul- 
tural labor, Congress passed legislation which made the definition 
in the Fair Labor Standards Act applicable to the National Labor 
Relations Act. Specifically, Congress provided that no funds appro- 
l)riated to the N.L.R.B. coidd be used "to organize, or assist in or- 
ganizing agrictiltural laborers, or used in connection with investi- 
gations, hearings, directives, or orders concerning bargaining units 
composed of agricultural laborers, as referred to in Section 2 (3) 
of the Act of July 5, 1935 (49 Stat. 450) (National Labor Rela- 
tions Act), and as defined in Section 3 (f ) of the Act of June 25, 
1938 (52 Stat. 1060) (Fair Labor Standards Act)." Thus, the 
appropriation rider device was used to implement this action. A 
similar restriction is contained in the N.L.R.B. Appropriation Act 
for the fiscal year 1948 (July 1, 1947-June 30, 1948). '' 

As long as the appropriation rider method is used to make the 
Fair Labor Standards Act definition applicable to the Labor Man- 
agement Relations Act, the rider must be re-enacted vear after vear. 
This would not be necessary if the substantive provisions of the 
Act were amended to include this definition. 

Before the Senate agreed to the Fair Labor Standards Act 
definition, the possible effect of limiting the use of the N.L.R.B. 



AGRICULTURAL WORKERS " 

funds was examined. Senator McCarren of Nevada, and chairman 
of the Senate members of the congTessional conference committee, 
pointed out that the Fair Laljor Standards Act definition did not 
cover employees of packing houses or processing estaldishments. Mr. 
McCarren said that "this provision confines itself to operations that 
are actuallv on the farm."'" Perhaps this interpretation was based on 
the fact that, imder the Fair Labor Standards Act definition, only 
those practices incidental to farming which are performed by a 
farmer or on a farm (italics supplied) may be considered agricul- 
tural in character. Employees who perform operations in commer- 
cial packing houses located ofif the farm therefore appear to retain 
their rights to organize and bargain collectively under the protec- 
tion of the N.L.R.B. However, in the case of the X.L.R.B. z'. John 
M\ Campbell Ine. the Fifth U. S. Circuit Court of Appeals held that 
emplo}ees of a tomato packing house fall within the agricultural 
exclusion even though the facility was removed from the farm and 
located in town."*^ 

The attitude of the National Labor Relations Board probably 
influenced the Senate to agree to the Fair Labor Standards Act 
definition. The Board was consulted before the Senate approved the 
measure. The Board said that though the definition "might recpiire 
few minor changes in . . . present procedure and definition . . . 
they woidd be very minor.""' In addition, the Board felt it "could 
get along iinder it very well." In contrast the Board pointed out 
that the definition of agricultural employment contained in the 
Social Security Act would affect sizable groups of employees if it 
were adopted. 

Congress also recognized that the jurisdiction of the N.L.R.B. 

woidd not be greatly reduced by the Fair Labor Standards Act 

definition, and onlv a relativelv small number of workers would 

lose benefits afforded by the National Labor Relations Act. This 

view was expressed by Senator Ball of Minnesota who was a 

member of the conference committee which considered the choice 

of definitions: 

histcad of using the definition of "agricultural laborer" contained in 
the Social Security Act. a very broad one, covering a great many processing 
employees, packing shed workers, and so forth, this change substitutes the 
definition "agriculture" contained in the Fair Labor Standards Act which 
is a much narrower definition." 



10 I. L. I. R. BULLETIN 

Significance of the Rider 

The amendment to the N.L.R.B. Appropriation Act codifies a 
definition of agricultural laborers which must receive consideration 
whenever the N.L.R.B. decides whether a i)articular employee is 
engaged in agriculture. Presumably the Board will be influenced, if 
not bound, in these decisions by construction placed on the definition 
by the Administrator of the Fair Labor Standards Act. It appears 
that any court decision dealing with the meaning of the Fair Labor 
Standards Act definition for purposes of that act would be equally 
binding on the N.L.R.B. in determining the scope of the definition 
for cases arising imder the Labor jManagement Act. 

A situation has already occurred in which a court's decision 
conflicts with an interpretation of the N.L.R.B. In 1940 the Board 
ruled that employees who fire the boilers of a commercial green- 
house were not engaged in agriculture. Accordingly these workers 
were afforded the full benefits of the National Labor Relations 
Act.^^ In contrast a federal district court on July 12, 1946, held that 
firemen employed in a commercial greenhoLise perform agricLiltLiral 
duties and are therefore exempt from the coverage of the Fair 
Labor Standards Act."^ On the basis of this court decision it would 
seem that these employees may no longer expect legal protection of 
their right to bargain collectively. 

On the other hand, the rider will be of little importance where 
no conflict of interpretation exists between the N.L.R.B., the Ad- 
ministrator of the Fair Labor Standards Act, and the courts. 
Actually these three units have been in agreement on many occa- 
sions on the scope of the agricultural classification. For example, 
even before the rider was attached to the N.L.R.B. Appropriation 
Act, employees performing duties on farm nurseries were denied 
legal protection of their right to collective bargaining.^^ These 
workers likewise have been excluded from the coverage of the Fair 
Labor Standards Act.^'' 

A similarity of these decisions arises from interpretations of 
agricultural employment handed down by the N.L.R.B. before 
enactment of the rider and the nature of the definition of agricLil- 
tural laborer contained in the Fair Labor Standards Act. Thus this 
definition states in part: 



AGRICULTURAL WORKERS 



11 



Agriculture includes farming- in all its branches and among other things 
includes the cultivation and tillage of the soil, dairying, the production, 
cultivation, growing, and harvesting of any agricultural commodities . . . 
the raising of livestock, bees, fur-bearing animals or poultry. . . . 

Decisions of the N.L.R.B. reflect this view of ai^rictilture. The 
Board has stated several times that "the term 'agricukural lahorer,' 
as commonlv tmderstood, refers to a person employed on a farm in 
the cultivation of the soil, including- the harvesting of the crops and 
the rearing and management of li\estock."'"' 

The Fair Labor Standards Act definition further provides that 
agricultural duties include those tasks performed "by a farmer or 
on a farm as an incident (italics supplied) to or in conjunction 
with such farming operations, including preparation for market, 
deli\"erv to storage or to market, or to carriers for transportation 
to market." In similar fashion the N.L.R.B. recognized, even before 
the limitation was placed on the use of its funds, that "the agri- 
cidtural character of the work does not necessarily terminate with 
the severance of the crop from the tree or ground. "^^ Instead the 
Board has held that workers engaged in processing, packing, pack- 
aging, transporting or marketing a farm crop, when done on a farm 
as "a;; incident to ordinary farming operations"-^ (italics supplied), 
fall within the agricultural classification. Thus on one occasion the 
Board found that employees of a sugar plantation who load sugar 
on trucks into railway cars for transportation to a sugar mill are 
agricultural workers.'" Further effects of the rider to the N.L.R.B. 
Appropriation Act will be indicated in the subsequent investigation 
of the meaning and scope of the agricultural labor exemption con- 
tained in the Labor Management Relations Act.* 

AGRICULTURAL-COMMERCIAL ENTERPRISES 

Economic development has resulted in the formation of some 
enterprises which are both agricultural and commercial in character. 



* Because tlie rider specifics that tlie definition of agricultural lal)or of Section 
3 (f) of the Fair Labor Standards Act is to apply to the Labor Management Rela- 
tions Act, Section 13 (a) (10) is probably not applicable. Section 13 (a) (10) 
exempts from the coverage of the Fair Labor Standards Act "any individual 
employed within the area of production (as defined by the Administrator), engaged 
in handling, packaging, storing, ginning, compressing, pasteurizing, drying, pre- 
paring in their raw or natural state, or canning of agricultural or horticultural 
commodities for market, or in making cheese or butter or other dairy products." 
Individuals "emploj'ed in agriculture" are separately exempted by Section 13 
(a) (6). 



u: OF JLC lib: 



12 



I. L. I. R. BULLETIN 



These establishments, though producing farm products, use a great 
deal of modern machinery, employ a comparati\'ely large number of 
workers, and ordinarily add great value to farm products which 
they process. In addition they are operated as large scale business 
organizations, using many of the methods of production commonly 
identified with the modern mass-production industrial factory. For 
example, sugar plantations, particularly those located in Hawaii and 
Puerto Rico, are highly mechanized and are organized as large- 
scale business establishments. Chick raising, commonly regarded as 
a farming pursuit, has been greatly affected by the introduction of 
the commercial incubator. The modern hatchery resembles in many 
ways the industrial factory. Alodern technology has also provided 
the basis for the greenhouse in which agriculture and horticulture 
products are produced under artificial conditions. 

The question thus arises : Are all these employees engaged in 
agricultural pursuits and hence deprived of legal protection of their 
bargaining rights? In dealing with this problem, the N.L.R.B. has 
given much weight to the character of the work performed. On one 
occasion the Board declared that the exclusion of employees from its 
jurisdiction depends on "the essential character of the work per- 
formed. . . ."^^ In other words, employees who perform duties 
which are incidental to the fanning operations of these agricultural- 
commercial establishments are denied legal protection of their right 
to self-organization and collective bargaining. But employees whose 
tasks are related to the coiiniicrcial activities of these enterprises 
have the protection and responsibilities of the Labor Management 
Relations Act. 

Sugar Plantations 

In January, 1945, a case arose which in\olved practically the 
entire sugar industry of Hawaii.'^" It was pointed out that the mod- 
ern Hawaiian sugar plantation is a corporation owning thousands 
of acres, employing hundreds of persons, with sales and purchases 
amounting to more than one million dollars per vear. Located on the 
plantations are railroads used to transport the sugar cane from the 
fields to the mills, irrigation systems, repair shops, and the sugar 
mills. The modern Hawaiian sugar plantation has been described 



AGRICULTURAL WORKERS 13 

as a "complex, highly mechanized, care full}' organized . . . large 
scale business enterprise." 

In deciding the case, the National Labor Relations iJoard held 
that those engaged in the planting, cultivating, and harvesting of the 
sugar cane are agricultural employees and hence excluded from the 
coverage of the National Relations Act. On the other hand, 
emplovees who operate the railroads, work in the sugar processing 
mills, and who repair machinery of the i)lantation were found to be 
subject to the jurisdiction of the N.L.R.B. Employees of irrigation 
companies owned by sugar plantations are likewise protected in 
their organizational activities. ^^'^ The fact that these workers handle 
the water which is used on the plantations does not place them 
within the agricultural employment category. 

Board action established certain principles in these cases. Work- 
ers who perform agricultural duties on large farms or plantations, 
using modern large-scale methods of production, are excluded from 
the scope of the Labor Management Relations Act in the same 
manner as are workers who execute similar tasks on small farms. 
Size of the enterprise alone does not determine whether or not a 
given worker will be treated as an agricultural employee. In addi- 
tion, all workers on a plantation or on a farm will not on the basis 
of this consideration alone be denied legal protection of their right 
to self-organization and collective bargaining. Instead the N.L.R.B. 
will give consideration to the character of the work. The test is 
whether the employee is engaged in activities which are commercial 
or agricultural in nature. Finally, the fact that a single employer 
may own a plantation as well as mills, repair shops or transporta- 
tion facilities located on the enterprise does not necessarily make 
milling, repairing, or transporting activities agricultural in 
character. 

Application of the Fair Labor Standards Act to employees of 
sugar plantations has also been established. A Circuit Court of 
Appeals held that employees who work in sugar processing mills, 
operate plantation railroads, and who repair and maintain trans- 
portation and mill facilities are not employed in agriculture.'"* Only 
those workers who plant, culti\"ate, or harvest sugar cane were con- 
sidered within the agricultural category and hence excluded from 
coverage of the Fair Labor Standards Act. As in the case which 



14 I. L. I. R. BULLETIN 

involved the National Labor Relations Act, the same management 

owned and controlled the plantation, the mill, the repair shops, and 

the transportation facilities. The court refused to give much weight 

to this feature in reaching its decision. It stated: 

The mere fact that in this case the owners of the farm are also owners 
of the mills and the transportation facilities does not make transportation 
an incident to farming. The issue, therefore, is not whether the same own- 
ers manage and control the mill, the farms, and the transportation system, 
but rather whether transportation is incident to milling, an operation 
specifically within the purview of the [Fair Labor Standards] Act.^" 

Li the light of this court decision, the rider to the N.L.R.B. Appro- 
priation Act is of little importance in cases involving sugar planta- 
tions. Workers who perform commercial duties on a plantation will 
continue to receive protection from the N.L.R.B. 

Nurseries 

Employees of nurseries which are engaged in the production, 
sale, and distribution of fruit trees, berries, and vegetables are 
exempt from provisions of the Labor Management Relations Act.^*^ 
Even though it was conceded that the conduct of the modern 
nursery includes both commercial and agricultural operations, the 
Board has held that the employees of these enterprises are engaged 
in agricultural employment. Li the case of a large Missouri nursery, 
the N.L.R.B. remarked, that the employees of the enterprise per- 
form duties "customarily regarded as agriculture." 

Specifically, employees of the Missouri nursery unload and store 
young fruit trees in the company's packing houses, cut scions from 
the trees growing in the nursery, graft the scions on to the seed- 
lings in the company's grafting rooms, and pack and ship the 
seedlings. In the packing season the workers fill and check custom- 
ers' orders and label, bimdle, pack and ship the orders. 

The N.L.R.B. granted that grafting and other work closely 
related to the propagation of fruit trees is "performed on a large 
scale and in a scientific manner." In the judgment of the Board, 
however, duties performed in operating niu'series are "familiar 
agricultural pursuits."'^' As a result workers of nurseries may not 
expect legal protection of their right to collective bargaining. 



AGRICULTURAL WORKERS 



15 



Employees of nurseries have also been excluded from coverage 
of the Fair Labor Standards Act.** For the purposes of this Act, 
the term "employed in agriculture" includes employees of nurseries 
engaged in: 

(1) sowing- seeds and otherwise propagating- fruit, nuts, vegetables, and 
ornamental plants or trees, shrubs, vines and flowers. 

(2) planting, cultivating, watering, spraying, fertilizing, pruning of 
nursery products. 

(3) handling, wrapping and packaging of products grcjwn l)y a nursery.*'' 

Since the N.L.R.B. has already denied employees of nurseries legal 
protection of their bargaining rights, the rider to the N.L.R.B. 
Appropriation Act and this interpretation of the Fair Labor 
Standards definition of agricultural employment will cause no 
change in the policy of the Board. 

Hatchery Employees 

The use of the modern incubator has greatly affected the 
method of chick production. }>Iany farmers now sell eggs to the 
modern hatchery instead of hatching the eggs on their own farms. 
In 1941 a hatchery in Missouri purchased from farmers eggs valued 
at about $169,497.*" During the same year, the company sold baby 
chicks worth approximately S419.410. Approximately 4.500.000 
chicks were incubated in the hatch.ery during that year. 

Employees who worked in the hatchery performed duties which 
included unloading eggs from trucks owned and operated by the 
company; placing the eggs in trays and inserting the trays into incu- 
bators; taking the hatched chicks out of the incubator; grading the 
chicks and boxing and loading them into trucks for transportation 
to market. In determining whether these employees fell within the 
agricultural classification, the X.L.R.B. was persuaded by the fact 
that their operations "are similar to the operations performed by the 
farmer."*^ Accordingly the Board ruled that hatchery employees do 
not fall within the limits of its jurisdiction. 

The Board recognized that the commercial hatchery in the case 
was large, used large-scale production methods, had scientific and 
specialized operations, and a large tcjtal value of the product. These 
features of the enterprise did not. however, sway the I'oard to grant 



16 I. L. I. R. BULLETIN 

legal protection to the hatchery employees. This case again illus- 
trated the principle that all workers engaged in the production of 
farm commodities produced under large scale methods are not, on 
the basis of this consideration alone, protected in their organiza- 
tional activities. If their duties are deemed agricultural in character, 
they are exckided from the terms of the Labor Management 
Relations Act. 

Hatchery workers have also been denied the benefits of the Fair 
Labor Standards Act.*" Since the administrator of that act held that 
operations performed in a commercial hatchery are agricultural in 
character, employees engaging in duties within these establishments 
have been designated as agricultural employees. This ruling was 
upheld by the Circuit Court of Appeals at Kansas City.*'^ For this 
reason the rider to the N.L.R.B. Appropriation Act is of little im- 
portance in cases involving hatcheries. The N.L.R.B. and the ad- 
ministrator of the Fair Labor Standards Act have reached similar 
conclusions on the agricultural status of hatchery workers. 

Greenhouse Employees 

The growing of agricultural and horticultural products in green- 
houses raises the problem: Are employees performing duties in 
greenhouses within the agricultin^al classification ? Planting, culti- 
vating, and harvesting operations appear as vital to the greenhouse 
method of producing agricultural and horticultural stock as they 
are to the raising of products on a farm where natural conditions 
prevail. The N.L.R.B. has consistently held that employees engaged 
in planting, cultivating, and harvesting operations are agricultural 
workers and are therefore excluded from the scope of its jurisdic- 
tion. Does the growing of farm products in greenhouses alter the 
agricultural status of the employees performing these duties? 

Difi^erent conclusions were reached by the N.L.R.B. and the 
administrator of the Fair Labor Standards Act on this problem. 
In 1940. the Board held that greenhouse employees were not agri- 
cultural workers and were therefore entitled to full protection of 
the National Labor Relations Act."** This decision was apparently 
influenced by the artificial nature of greenhouse production. On 
this score the N.L.R.B. stated that the duties of greenhouse em- 



AGRICULTURAL WORKERS 17 

ployees are not performed on a farm, nor are their services incident 
to farmings operations. Instead their work, according to the Board, 
was industrial in character, for "planting, care, and growing of 
plants and flowers ha\e been removed from the farm and from the 
natural conditions which there obtain, and are carried on under arti- 
ficial conditions and in a specialized process."'*'' 

In another case in 1041 the I)oard held that em[)l()\ees perform- 
ing operations in greenhouses where mushrooms are produced are 
entitled to the protection of the National Labor Relations Act.'*" 
Again the Board noted the artificial conditions which prevail in 
greenhouse operations. It declared that mushroom growing under 
artificial conditions does not depend upon "climate, temperature, 
rainfall, or other conditions which affect the growing of crops under 
ordinary circumstances."'*' Hence, employees performing duties in 
connection with the raising of mushrooms in greenhouses perform 
tasks which are not agricultural but industrial in character. 

A different position has been taken by the administrator of the 
Fair Labor Standards Act. In August, 1939, the administrator ruled 
that employees engaged in the production of mushrooms, flowers, 
or seeds under greenhouse conditions are excluded from the pro- 
visions of the Fair Labor Standards Act.*^ As noted before, a 
federal district court implemented this ruling in 1946.*'' The court 
dealt with application of the Fair Labor Standards Act to employees 
who fired boilers in a greenhouse producing cut flowers. It was 
recognized by the Court that greenhouse production which is 
carried on "under glass with steam heat is of course far removed 
from our normal conception of the growth of products by a farmer 
on an ordinary farm." Nevertheless, the court held that firemen of 
greenhouses are "agricultural laborers" within the meaning of the 
Fair Labor Standards Act since, in its opinion, the language de- 
fining agricultural employment in the .\ct "is broad enough to cover 
this type of production." 

Although only greenhouse firemen were involved in this district 
court case, it may be expected that the administrator's riding which 
excludes all greenhouse employees from the purview of the Fair 
Labor Standards Act would be sustained by the courts. In fact, in 
the case described above, the court held that "we are l)ound to give 
weight to the interpretation of the administrator." It a])pears then 



18 I. L. I. R. BULLETIN 

that greenhouse employees may not expect further protection from 
the N.L.R.B. in their organizational activities. The Board, now 
bound by the Fair Labor Standards Act definition of agricultural 
emplovment, must apparently decline jurisdiction of additional 
cases involving greenhouse employees. 

Dairy Ranch Bottlers 

Some employers who own large dairy ranches possess the facili- 
ties for bottling the milk produced on the ranch. For example, one 
corporation located in Hawaii owns a dairy ranch of about 2,000 
acres. ^° Located on the ranch are corrals, warehouses, and the main 
dairy plant. The cows are milked and the milk bottled in the same 
building. Employees who perform the bottling operations run the 
bottle washers, filling machine, and capping machine. In addition, 
they place the milk in cold storage, wash pipe lines and bottling 
machines, and check outgoing and returned unsold milk. 

In determining the status of the employees engaged in the 
bottling process under the National Labor Relations Act, the 
N.L.R.B. held that the bottling operations are related to the com- 
mercial activities of the ranch rather than to its agricultural pur- 
suits. The bottlers were therefore afforded legal protection of their 
bargaining rights. The Board recognized that the bottlers handled 
a product produced on the ranch, but ruled that this fact alone did 
not place the employees beyond its jurisdiction. Instead the Board 
restated the principle that the character of the work performed by 
an employee is a controlling consideration in determining his agri- 
cultural status. Thus if he executes commercial duties, a worker is 
covered by the Labor Management Relations Act even though he 
may be engaged in handling products grown on a farm, plantation, 
or ranch. 

It appears that bottlers are also covered by the Fair Labor 
Standards Act. In 1939 the administrator of that Act held that 
employees engaged in "the bottling of milk, the capping of bottles, 
and the transportation of milk" are not exempt from the coverage 
of the Fair Labor Standards Act." Only when these activities are 
so closely associated to the pasteurization of milk, that "they can- 
not be segregated therefrom" are bottling workers apparently ex- 
empt from the protection of the Fair Labor Standards Act.'" It 



AGRICULTURAL WORKERS 



19 



seems, tlierefore. that these workers are still entitled to lei^al pro- 
tection of their collective barsi^ainini^ rij^dits. in spite of the fact that 
the Fair Labor Standards Act definition of agricultural employment 
now applies to the Labor-Management Relations Act. 

PACKING, CANNING, AND SHIPPING 
OF FARM PRODUCTS 

Even before Congress enacted the rider to the X.L.R.1>. Ap- 
propriation Act, the N.L.R.B. held that farming did not stop with 
the mere harvesting of a crop. Practices which are incidental to 
growing or harvesting farm ])roducts were considered agricultural, 
and the employees performing these operations have been denied 
the use of remedies of the Board. 

Thus a group of employees engaged in the sorting and grading 
of olives were regarded as agricultural employees.''^ Their company 
grew and marketed raw olives. The firm owned approximately 480 
acres of orchard land in California, producing L160,230 poimds 
of olives in one year. The workers used a sorting belt and an auto- 
matic grader. Specifically, they culled olives which were bruised, 
rotten, misshapen, or otherwise not marketable. In addition, they 
removed stems from the olives. After the grading and sorting 
operations were completed, the workers who performed these duties 
then loaded the barrels of graded olives onto trucks. In deciding that 
these graders and sorters are agricultural workers, the N.L.R.B. 
held that their operations are incidental to the growing of the olives 
and not related to the commercial activities of the company. 

On the other hand, employees of commercial packing, proc- 
essing, or canning enterprises are not excluded from the jurisdiction 
of the Board. In fact, it was this policy of the N.L.R.B. which stim- 
ulated Congress to attempt to deny these workers legal protection 
of their right to collective bargaining. 

Packing and Shipping Operations 

In a series of cases involving a group of lettuce i)acking and dis- 
tributing companies in California and Arizona, the N.L.R.B. held 
that lettuce packing workers em[)loyed by these establishments are 
not agricultural workers.'* The fact that their duties arc not per- 



20 I. L. I. R. BULLETIN 

formed on a farm, but in lettuce packing sheds located in towns, 
next to railway sidings, and close to ice sheds prompted this de- 
cision. The l)oard weighed heavily the consideration that several 
of the packing companies grew only a portion of the lettuce which 
they packed and shipped, and bought additional quantities of lettuce 
from other growers. 

lunplovees of comi)anies which purchase, pack, and distribute 
onions are likewise subject to provisions of the Labor Management 
Relations Act.^' In a case involving these workers it was shown that 
their employers bought from growers quantities of onions which 
were prepared for shipment by onion packing companies. Unlike 
the olive graders, the employees of these onion packing establish- 
ments were not employed by the farmers who grew the product, 
but bv companies which bought the commodity from farmers. The 
Board also noted that the work of the employees was not performed 
on a farm. 

A similar set of circumstances were present in a proceeding 
involving oyster packers.^*' A Maryland oyster distributing company 
purchased quantities of oysters from fishermen who brought the 
product to the packing plant of the company. Employees of the 
packing company first stored the oysters in bins, and later 
"shucked," washed, and packed them into containers. The Board 
pointed out that these employees' duties are performed in the pack- 
ing plant and their services are devoted exclusively to the handling 
of oysters being prepared for shipment to the market. The Board 
ruled that these packing house workers perform duties which are 
commercial rather than agricultural. Employees who pack and ship 
carrots, broccoli, chicory, and other vegetables, as well as melons, 
are likewise entitled to legal protection of their collective bargain- 
ing rights." 

Commercial packing house workers are also covered by the 
Fair Labor Standards Act. The administrator of that law declared 
that the agricultural exemption of the law "does not extend to em- 
ployees of packing house owners who pack produce of other growers 
as well as their own. LTnless packing is done on the farm on which 
the commodities packed are raised, an independent contractor en- 
gaged in packing would not appear to be entitled to benefit of agri- 
cultural exemption."'^* Adoption of the Eair Labor Standards Act 



AGRICULTURAL WORKERS 



21 



definition of agricultural employment for purposes of the Labor 
Management Relations Act does not therefore exclude packing 
house workers from the protection and responsibilities of existing 
federal labor relations law. 

Court Cases on Packing and Processing 

In the cases reviewed above most firms bought from growers 
all, or a part, of the farm produce which they packed and dis- 
tributed. A c|uestion thus arises about the status of workers in an 
establishment which itself grows all of the farm products which it 
packs and ships. In March, 1946, the National Labor Relations 
Board, in the Campbell case, dealt with this problem. The proceed- 
ing involved a Florida firm which grows tomatoes and operated a 
packing plant in which are processed on/ A' the tomatoes grown on 
its own farm.^" Evidence in the case showed that the packing plant 
was not on the farm, but in a town, and that large-scale production 
methods were used in the packing. 

These facts prompted the Board to hold that employees in the 
packing house were not agricultural workers, even though the same 
management owns the farm and the packing house. According to 
the X.L.R.B., the fact that the same employer operated both pack- 
ing house and tomato farm "is rele^■ant but not controlling" in de- 
termining the agricultural status of the packing house workers. Of 
greater importance was the fact that the packing house oj)erations 
were "removed from farm to town, and performed under factory 
conditions."*'"' 

In January, 1947, the Circuit Court of Appeals in New Orleans 
overruled this decision of the N.L.R.B. holding that the employees 
of the packing house were agricultural laliorers and thus removed 
from the protection of the National Labor Relations Act."^ The 
court declared that packing and preparing agricultural products for 
market is a necessary step in any agricultural operation. A packing 
plant does not become commercial or industrial in character merely 
because the enterprise is large and is organized along factory lines. 
The fact that the plant was located in a town was apparently given 
little weight b)- the court at New Orleans. The Circuit Court 
stressed the point that the packing plant employees packed only 
'those tomatoes grown on the farm of the Florida firm. It would 



22 I. L. I. R. BULLETIN 

seem that the United States Supreme Court must eventuaUy decide 
whether employees such as those in the Caniphcll case fall within 
the agricultural classification. 

On two other occasions the Supreme Court declined to review 
cases dealing with the agricultural status of workers who pack and 
process farm products. One of these cases affected workers pre- 
paring the Idaho potato crop for market. The other concerned the 
meat packing industry. In the Idaho Potato Growers case/'" the 
facts indicated that produce men purchase and handle under contract 
a large part of the Idaho potato crop. After the potatoes are dug, 
they are taken to a place for sorting, washing, grading, and packing. 
At times this readying for shipment is done in "cellars" on the farm, 
and sometimes in the warehouses of the produce men. Employees 
who perform these duties work as crews and are employed, not by 
farmers in whose cellars they work, but by the produce men. More- 
over, the crews work under supervisors designated by the dealers. 

It was held by a Circuit Court of Appeals that the work done 
by these workers is commercial and not agricultural. Much weight 
was given to the fact that the employees were hired by the dealers 
and worked under the supervision of foremen selected by the 
produce men. Another major consideration was the fact that the 
readying process may be performed either on the farm or in ware- 
houses located off the farm. It w^as held that workers performing 
the tasks in farm cellars are entitled to protection of the N.L.R.B. 
in the same manner as those working in dealers' warehouses. It was 
also noted that the work was not incidental to the planting, culti- 
vating, or harvesting of the potato crop, but to its commercial 
marketing. 

Somewhat similar facts were present in a lemon picking case.*^^ 
A California firm gained complete control of lemon crops through 
contracts made with individual growers even before the lemons 
were picked from the trees. When the lemons were ready to be 
picked, the company sent crews of pickers to the growers' orchards. 
The employees in the particular case were hired, paid and supervised 
by the company and not by the farmers in whose fields they worked. 
A labor organization which sought to bargain for the lemon pickers 
argued that the employees were not agricultural workers because 



AGRICULTURAL WORKERS 



23 



their duties were more closely allied with commercial marketinii;- 
than with the growing and cultivation of the lemon croj). 

The Board, however, held that the lemon pickers were agricul- 
tm\'il workers and exempt from its jurisdiction. The Board was 
l)ersuaded by the fact that the essential character of the [)ickers' 
work is agricultural. In contrast with employees read>'ing potatoes 
for market, the tasks of the lemon pickers can be performed only on 
the farm and not in warehouses olT the farm. 

The proceeding which dealt with the meat packing industry was 
the Tozn'ca case. A Circuit Court of Appeals held that employees 
of a meat slaughtering and packing enterprise who fed and con- 
ditioned cattle before the slaughter or sale of the animals are not 
agricultural workers.'^'* The company in the case owned feed lots 
adjacent to the packing house. Cattle were held in their pens for 
30 davs to 6 months. They were then slaughtered or sold. The em- 
ployees hauled and distributed feed by wagon or tractor to the 
cattle, cleaned out the feed and water troughs, gathered up manure, 
stacked hay, and repaired fences. It was recognized that the tasks 
performed by these workers are essentially agricultural in nature, 
but the employees were not regarded as farm laborers because their 
work, according to the view of the court, was incidental to the com- 
mercial activities of the company in its packing plant. 

Approximately five years later the N.L.R.B. held in the Swift 
case, that another group of employees who fed and conditioned 
cattle owned by a meat slaughtering and packing establishment fell 
within the agricultural classification.'"^ The facts in the S-a'ift case, 
in contrast with the Tovrea matter, indicated that the feed lot of 
the companv was geographically separated from the slaughtering 
facilities, that the feed lot was operated as an independent project, 
and that a separate pay roll was maintained for the feed lot workers. 
These feed lot workers were not, in the opinion of the Board, per- 
forming duties incidental to the commercial and industrial activities 
of the company. They were therefore ruled to be agricultural 
workers. It would thus appear that cattle feed lot workers employed 
by a meat packing corporation are exempt from the Lal)or Manage- 
ment Relations Act unless they perform their duties in pens located 
immediately adjacent to the slaughtering facilities. 



24 I. L. I. R. BULLETIN 

Canning Operations 

As noted, attempts have been made in Congress to exclude can- 
nery workers from the jurisdiction of the N.L.R.B. These efforts 
failed, however, and workers employed in commercial canning 
establishments are fully covered by existing federal labor relations 
legislation. Where a farmer cans commodities which he himself 
grows, however, employees engaged in such canning operations 
perform work incidental to farming, according to the Administrator 
of the Fair Labor Standards Act.*'*' Thus these workers are not sub- 
ject to the protection and limitations of the Labor Management 
Relations Act because the N.L.R.B. is now presumably bound by 
interpretations handed down by the administrator. 

Employers have not contended that all cannery workers fell 
within the agricultural employment classification. Apparently em- 
ployers, trade unions, and the N.L.R.B. have all recognized the in- 
dustrial character of commercial canning. However, the Board has 
decided many cases which involved workers engaged in the canning 
of farm products. These proceedings frequentlv deal with the ap- 
propriateness of bargaining units containing cannery employees. 
For example, on one occasion a union representing employees of an 
Illinois vegetable canning company desired a unit of all production 
and maintenance workers.**' The company offered little objection 
to this proposal, and the unit was found appropriate. 

The N.L.R.B. also dealt with the appropriateness of bargain- 
ing units of workers employed in salmon canneries located in 
Alaska and along the Pacific northwest.* In one of these cases, 
workers of salmon canning companies were regarded as employees 
of the establishment even though their duties were seasonal in 
character.*'* The employees of a company which engaged in the re- 
duction, canning, processing, handling, loading and storage of fish, 
fish oil, and fish meal were likewise deemed to compose a unit appro- 
priate for collective bargaining.**** On still other occasions the 
N.L.R.B. took jurisdiction of cases involving companies wdiich can 
fruit,'" baby foods, '^ olives,'" and pickles.''^ 



* The Fair Labor Standards Act Section 13 (a) (5), specifically exempts per- 
sons engaged in the canning of fish. However, this exemption will not affect the 
status of these workers under the Labor-Management Relations Act, for they are 
not excluded on the basis of agricultural employment. Instead Congress excluded 
them from the provisions of the Fair Labor Standards Act as a class. 



AGRICULTURAL WORKERS 25 

PART-TIME AGRICULTURAL EMPLOYEES 

Fre(|iicnll\- workers divide their workini^- lime l)et\\een a,i;"ricul- 
tiiral and non-agricultural duties. For example, a railway section 
gang employed on a large Hawaiian sugar plantation is rejXM-ted 
to spend about two-thirds of its lime repairing and maintaining 
railway lines and the other one-third in harvesting tasks.''* A special 
question is thus raised about the status under the Labor-Manage- 
ment Relations Act of employees who perform part-time agricul- 
tural duties. Are these workers excluded completely from coverage 
of the act? Or are they covered when engaged in non-agricultural 
pursuits, and excluded when engaged in agricultural occupations.-' 

The N.L.R.B. has ruled that these workers are to be classed as 
non-agricultural workers, and hence covered employees, while they 
are emi)loved in commercial or industrial duties, but agricultural, 
and hence uncovered employees, while they are engaged in agricul- 
tural pursuits. The Board said in February, 1947, that "with respect 
to N.L.R.B. practice . . . persons who divide their time betw-een 
agricultural and non-agricultural pursuits are 'employees' while per- 
forming non-agricultural functions, and during such periods, are 
entitled to the benefits of the National Labor Relations Act.""' 

Employees who spend about 50 per cent of their time slaughter- 
ing meat for the other workers of a plantation and the other half 
of their time in agricultural jnirsuits may be represented by a union 
certified l)v the Board onlv during the time which the workers de- 
vote to butchering.'" In 1Q44 the P^oard held that employees of a 
seed processing and distributing company are entitled to legal pro- 
tection of their right to collective bargaining during the eight 
months or more of each year in which they perform seed processing 
operations." On the other hand these workers were denied the bene- 
fits of the National Labor Relations Act while they were doing 
agricultural work on farms owned b)- the seed i)rocessing company. 
A labor union certified to bargain for such employees may be 
authorized to represent them only on matters affecting their inter- 
ests as plant workers, and not on issues affecting their status as agri- 
cultural employees. 

The policy established by the Administrator of the Fair Labor 
Standards Act differs somewhat on this point. A person to l)e 
exempt in any one work-week ironi the provisions of the Fair 



26 I. L. I. R. BULLETIN 

Labor Standards Act must spend all of his working time in farm 
pursuits.'^ An individual receives full protection under this law 
even though he devotes only a slight portion of his working time 
to non-agricultural duties. The N.L.R.B. appears to have adopted 
a narrower viewpoint and will afford protection to a part-time 
agricultural worker, onl}- during the time in which he engaged in 
commercial or industrial activities. Moreover, to vote in bargaining 
elections these employees must spend at least fifty per cent of their 
working time in non-agricultural pursuits.'^ The N.L.R.B. reaf- 
firmed its position on the status of the part-time agricultural 
worker after the definition of agricultural employment in the Fair 
Labor Relations Act was made applicable under the National Labor 
Relations Act.®° Apparently the Board feels that there is no need to 
alter this particular policy even though it must now interpret agri- 
cultural employment in the same manner as the term is construed 
for purposes of the Fair Labor Standards Act. 

AGRICULTURAL COOPERATIVES 

A variety of tasks are performed in packing and processing 
plants owned and operated by cooperative organizations. This 
raises the cjuestion: To what extent are workers in these establish- 
ments subject to the provisions of the Labor Management Relations 
Act? 

Spokesmen of some farmers' cooperatives have argued that their 
employees are agricultural workers even though the employees work 
in plants operated and owned by cooperatives and not on farms. 
This contention was advanced in the North JJliifticr Heights As- 
sociation case, the leading court case dealing with the status of em- 
ployees of cooperatives under the National Labor Relations Act. 
It was argued that if a single farmer were personally to hire and 
direct those doing his own packing and sorting, the work would be 
agricultural and his employees would be excluded from the jurisdic- 
tion of the N.L.R.B. The argument concluded by saying that the 
agricultural character of the work is not altered merely because 
the farmer, a member of a cooperative, turns over his product to a 
cooperatively owned plant for processing, packing, and marketing. 



AGRICULTURAL WORKERS 27 

Position of the Courts 

The United States Circuit Court of Appeals at San Francisco 
rejected this view. It held that employees of agricultural coopera- 
tives were non-ai(ricultural workers and were suhject to the pro- 
visions of the National Labor Relations Act. This decision was 
later sustained by the Supreme Court of the United States.**^ The 
Circuit Court ruled that the operations in processing and packing- 
plants owned cooperatively are industrial and not agricultural. On 
this point the Court stated that "when the product of the soil leaves 
the farmer and enters a factory for processing and marketing it has 
entered the status of 'industry'."*" Since employees of these estab- 
lishments perform non-agricultural duties, the remedies afforded 
by the N.L.R.B. are available to them. 

The Circuit Court, furthermore, was convinced that the nature 
of the work and the status of the employees is altered by removing 
the ])acking and processing operations from the farm to the cooper- 
atively owned plant. The Court pointed out that "the factual change 
in the manner of accomplishing the same w'ork is exactly what 
does change the status of those doing it."*^ Finally it may be pointed 
out that the N.L.R.B. will assume jurisdiction over the employees 
of an agricultural cooperative even though the organization 
processes and packs only the commodities grown by its farmer- 
members.®* 

Types of Cooperatives Subject to N.L.R.B. 

The North Whitticr case dealt with the processing and packing 
of citrus fruits, but the N.L.R.B. has also held that other types of 
agricultural cooperatives are subject to its jurisdiction. The em- 
ployees of a Vermont dairy, cooperatively owned by 750 member- 
farmers, were held to be non-agricultural workers sul)ject to the 
National Labor Relations Act.*'' 

Work performed by employees of dairies is regarded by the 
Board as commercial. "When the milk leaves the farm and reaches 
the (dairy) for processing and marketing, it becomes engulfed in 
the first step of industrial activity, and is then in the practical control 
of a large selling organization," the Board stated.*'' 



28 I. L. I. R. BULLETIN 

In 1939 the N.L.R.B. held that employees shelling walnuts in 
California plants owned by a cooperative growers' association are 
not agricultural laborers.^' At the shelling plants employees feed 
walnuts into large shell-cracking machines; separate kernels as to 
size and color ; clean, pack, and ship the kernels to the association's 
warehouses and to customers. Again controlling importance was 
attached to the industrial character of the work. The Board declared 
that the operations "like those of workers in industrial mass pro- 
duction plants are highly specialized. Each employee has one task 
to perform which contributes but one step in the total operation of 
processing the nut."^* It was also pointed out that the cooperative 
is not engaged in farming, but in the marketing of walnuts, and that 
the duties of the employees are incidental to the commercial enter- 
prise of marketing. Employees of poultry cooperatives are likewise 
regarded as not engaged in agriculture, and hence are subject to the 
jurisdiction of the Board. *^ 

Effect of Rider to N.L.R.B. Appropriation Act 

In February, 1947, the N.L.R.B. in the Son Fernando Heights 
Lemon Association case refused to hold that workers in agricultural 
cooperatives are exempt from its jurisdiction because of the limi- 
tation attached to its appropriation act.'"' (As noted, this limitation 
prohil)its the Board from using its funds in proceedings involving 
agricultural laborers as the term is defined in the Fair Labor Stand- 
ards Act. ) The employees in the case worked in the packing houses 
of a California lemon packing association. 

To support its position the N.L.R.B. pointed out that employees 

of packing houses operated by cooperative organizations are not 

regarded as agricultural workers under terms of the Fair Labor 

Standards Act. In March, 1939, the administrator of that act stated 

that such workers do not fall within the agricultural emplovment 

classification: 

Employees of a farmers' cooperative . . . are employed not by the 
individual farmers who compose its membership or who are its stockholders, 
but by the cooperative association itself. Cooperative associations, whether 
in the corporate form or not, are distinct, separate entities from the farm- 
ers who compose them. The work performed by a farmers' cooperative 
association is not work performed by the farmer but for farmers.'"" 



AGRICULTURAL WORKERS 29 

This rulin«^ by the administrator was the basis for the X.L.R.B. 
decision that workers in the San Fernando case are not agricultural 
workers since "the cooperative association is not a "farmer' nor are 
its packing facilities located on a farm." In the light of this inter- 
pretation of the Fair Labor Standards Act, it may be ex])ected that 
workers employed in packing and processing facilities owned and 
operated In- cooperative organizations will continue to receive the 
benefits and assume the responsibilities of covered employees under 
the Labor ^lanagement Relations Act, 1947. 

CONCLUSIONS 

Agricultural workers, previousl}' excluded from the scope of the 
National Labor Relations Act. are not covered by the terms of the 
Labor Management Relations Act, 1947. Labor organizations com- 
posed of these employees are not, therefore, affected by the pro- 
tective or restrictive features of the new labor law. 

Congress excluded farm laborers from the terms of the two 
labor relations acts, but it made no effort until July, 1946, to spell 
out the nature and scope of the term "agricultural labor." For ap- 
proximately 1 1 years the National Labor Relations Board and the 
courts construed the meaning of agricultural employment. 

To determine whether a given employee falls within the agricul- 
tural exemption, the Board and the courts have given much weight 
to the character of work performed l)^■ the worker. If the duties 
of an employee are deemed agricultural in nature, he has been ex- 
cluded from the coverage of the National La1)or Relations Act. and 
presumably will be excluded from coverage under the Labor Man- 
agement Relations Act, 1947. 

The benefits and responsibilities of the new act apply to workers 
who engage in non-agricultural tasks whether or not the workers 
are employed on a farm, plantation, or ranch. In addition, a worker 
who carries out industrial or commercial tasks does not fall within 
the agricultural employment class merely because he handles com- 
modities produced on a farm, ranch, or plantation. For example, 
employees of commercial packing houses fall within the jurisdic- 
tion of the N.L.R.B. while workers performing duties in commer- 
cial hatcheries are excluded. In the judgment of the Board and the 



30 I. L. I. R. BULLETIN 

courts employees of hatcheries perform agricidtural ckities while 
workers in commercial packing houses carry out commercial and in- 
dustrial tasks. 

In July, 1946, Congress restricted the Board's power to define 
the meaning of "agricultural employment" by making the Fair 
Labor Standards Act definition of the term applicable to the 
National Labor Relations Act. Congress took similar action in 1947, 
and the definition of agricultural employment contained in the Fair 
Labor Standards Act still controls the meaning of the term under 
the Labor-Management Relations Act. Only a comparatively small 
number of employees previously subject to the jurisdiction of the 
N.L.R.B. appear to have been removed from its authority because 
the Fair Labor Standards Act definition was adopted. 

Footnotes 

1. Congressional Record, June 19, 1935, v. 79, Part 9, 9720. 

2. National Labor Relations Act, 49 Stat. 449, Section 2 (3). 

3. Labor-Management Relations Act, 1947 (Taft-Hartley) Public Law 101, 80th 
Congress, 1st Session, Title I, Section 2 (3). A slight change in the nature of 
the exclusion is embodied in the Labor-Management Relations Act. Whereas 
the Wagner Act stated that an "emploj'ee" for purposes of that law did not 
include "any individual employed as an agricultural laborer," the Taft-Hartley 
law provides that the term "employee" for purposes of this statute does not 
embrace "any individual employed in agriculture." At this time the change in 
the wording is not expected to alter significantly the interpretations of the 
N.L.R.B. or the courts concerning the nature of agricultural employment. 

4. Congressional Record, op. cit., p. 9721. 

5. North Whittier Heights Citrus Association v. N.L.R.B., 109 F. (2d) 80 
(CCA. 9; 1940). 

6. 49 Stat. 620. 

7. 52 Stat. 1060. 

8. National Labor Relations Board Appropriation Act, 1947, Public Law 549, 79th 
Congress, 2nd Session. 

9. See S. 1550, 76th Congress, 1st Session. 

10. Labor Relations Reporter, February 11, 1946, v. 17, p. 772. 

11. Chicago Tribune, May 28, 1947, p. 1. 

12. Congressional Record, July 12, 1946, v. 92, part 7, p. 8735. 

13. Ibid., p. 8741. 

14. Ibid., p. 8743. 

15. Ibid., p. 8740. 

16. Ibid., p. 8738. 

17. Ibid., p. 8736. 

18. National Labor Relations Board Appropriation Act, 1948, Public Law 165, 80th 
Congress, 1st Session. 



AGRICULTURAL WORKERS 



31 



19. Congressional Record, July 20. 1946, v. 92, part 8, p. 9515. 

20. X.L.R.R. V. John W. Campbell, 159 F. (2d) 184 (CCA. 5; 1947). 

21. Cougressional Record, op. cit., p. 9514. 

22. Ibid., p. 9514. 

23. In the Matter of I'ark I-'loral Coiiipany, 19 X. L.R.I]. 403 (1940). 

24. John B. Dannitz v. William Pinchbeck, United States District Court. District 
of Connecticut No. 1610, July 12, 1946 (66 F. Supp. 667). This decision of the 
district court was upheld by the Circuit Court of Appeals at New York. 

John Damutz vs. William Pinchbeck, U.S. Circuit Court of Appeals, 
Second Circuit No. 102, Dec. 23, 1946. 

25. In the Matter of Stark Brothers Nurseries and Orchards Coinpanv, 40 
N.L.R.B. 1243 (1942). 

26. United States Department of Labor, Wage and Hour Division, Interpretative 
Bulletin, No. 14, August 21, 1939, Section 5 (e). 

27. In the Matter of Pepeeko Sugar Company, 59 N.L.R.B. 1537 (1945). 

28. In the Matter of L. S. Hnnn Packing Co., 65 N.L.R.B. 635 (1946). 

29. In the Matter of Grozcer-Shipper Vegetable Association of Central California, 
15 N.L.R.B. 533 (1939). 

30. In the Matter of Pepeeko Sugar Company, supra, p. 1539. 

31. In the Matter of Stark Brothers Nurseries, supra, p. 1251. 

32. In the Matter of the Pepeeko Sugar Company, supra. 

33. In the Matter of East Maui Irrigation Company, 60 N.L.R.B. 211 (1945). 

34. Bowie V. Gonzalez, 117 F. (2d) 11 (CCA. 1; 1941). 

35. Calaf v. Gonzalez, 127 F. (2d) 937 (CCA. 1; 1942). 

36. In the Matter of Stark Brothers Nurseries, supra. 

37. Ibid., p. 1249. 

38. See footnote 26, supra. 

39. Department of Labor, Wage and Hour Division, Opinion Manual of the 
General Counsel, p. 54. 

40. In the Matter of Lindstrom Hatcherx and Poultry Farm, 49 N.L.R.B. 776 
(1943). 

41. Ibid., p. 784. 

42. Interpretative Bulletin, No. 14, Section 9. 

43. Miller Hatcheries v. Boyer, 131 F. (2d) 283 (CCA. 8; 1942). 

44. In the Matter of Park Floral Coinpany, supra. 

45. Ibid., p. 414. 

46. In the Matter of Knaust Brothers, 36 N.L.R.B. 915 (1941). 

47. Ibid., p. 918. 

48. Interpretative Bulletin, No. 14, Section 5 (d). 

49. See footnote 24, supra. 

50. In the Matter of Hind-Clarke Dairy, 58 N.L.R.B. 99 (1944). 

51. Opinion Manual of the General Counsel, p. 140. 

52. Ibid., p. 258. 

53. In the Matter of L. S. flunn Packing Co)iipany, supra. 

54. See In the Matter of American Fruit Growers, Inc., 10 N.L.R.B. 316 (1938). 

55. In the Matter of J. R. Simplof Produce Company, 55 N.L.R.B. 1228 (1944). 

56. In the Matter of Coubourne and Jeivett, 59 N.L.R.B. 176 (1944). 



32 I. L. I. R. BULLETIN 

57. In the Matter of Arcana-Norton Company, 60 N.L.R.B. 1166 (1945). 

58. Opinion Manual of the General Counsel, p. 52. 

59. In the Matter of John JC. Campbell, Inc., 66 N.L.R.B. 881 (1946). 

60. Ibid., p. 886. 

61. See footnote 20, supra. 

b2. Idaho Potato Growers, Inc. v. N.L.R.B., 144 F. (2d) 295 (CCA. 9; 1944). 
Certiorari denied Hi U.S. 769 (1944). 

63. In the Matter of Saticoy Lemon Association, 41 N.L.R.B. 243 (1942). 

64. N.L.R.B. V. Tovrea Packing Company, 111 F. (2d) 626 (CCA. 9; 1940). 
Certiorari denied 311 U.S. 668 (1940). 

65. In the Matter of .Szdft & Company, 63 N.L.R.B. 1227 (1945). 

66. Opinion Manual of the General Counsel, p. 140. 

67. In the Matter of Ladoga Canning Company, 41 N.L.R.B. 51 (1942). 

68. In the Matter of Alaska Salmon Industry, Inc., 33 N.L.R.B. 727 (1941). 

69. In the Matter of Port Costa Packing Company, 46 N.L.R.B. 931 (1943). 

70. In the Matter of California Packing Company, 66 N.L.R.B. 1461 (1946). 

71. In the Matter of Gerber Products Company, 59 N.L.R.B. 1362 (1945). 

72. In the Matter of Pacific Olive Company, 46 N.L.R.B. 1 (1942). 

73. In the Matter of Goldsmith Pickle Company, 23 N.L.R.B. 70 (1940). 

74. In the Matter of Pepeeko Sugar Company, supra. 

75. In the Matter of .'^an Fernando Heights Lemon Association, 72 N.L.R.B. 372 
(1947). 

76. In the Matter of Pepeeko Sugar Company, supra, p. 1540. 

77. In the Matter of Nezvday Seeds, Inc., 55 N.L.R.B. 1049 (1944). 

78. Interpretative Bulletin, No. 14, Section 2. 

79. In the Matter of Alaui Pineapple Company, 60 N.L.R.B. 409 (1945). 

80. See footnote 75, supra. 

81. 310 U.S. 632 (1940). 

82. North Jl'hitfier 11 eights Citrus Association v. N.L.R.B., supra, p. 78. 

83. Ibid., p. 80. 

84. See N.L.R.B. v. Edinburg Citrus Association, 147 F. (2d) 353 (CCA. 5; 
1945). 

85. In the Matter of Alilton Co-operative Dairy Corporation, 68 N.L.R.B. 535 
(1946). 

86. Ibid., p. 537. 

87. In the Matter of California Walnut Groivcrs Associaiio7is, 18 N.L.R.B. 493 
(1939). 

88. Ibid., p. 500. 

89. In the Matter of Rockingham Poultry Cooperative, 59 N.L.R.B. 486 (1944). 

90. In the Matter of San Fernando Heights Lenion Association, supra. 

91. Interpretative Bulletin, No. 10, dated March 31, 1939, see also Redlands Foot- 
hills Groves V. .lacobs, 30 Fed. Supp. 995 U.S.D.C Calif.; 1940. In this case 
the district court held that employees of a fruit packing cooperative were 
covered bv the Fair Labor Standards Act. 



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